El-Shifa Pharmaceutical Industries Co. v. U.S., 07-5174.

559 F.3d 578

EL-SHIFA PHARMACEUTICAL INDUSTRIES COMPANY and Salah El Din Ahmed Mohammed Idris, Appellants v. UNITED STATES of America, Appellee.

No. 07-5174.

United States Court of Appeals, District of Columbia Circuit.

Argued April 7, 2008.

Decided March 27, 2009.

Appeal from the United States District Court for the District of Columbia (No. 01cv00731).

Christian G. Vergonis argued the cause for appellants. With him on the briefs were Stephen J. Brogan, Timothy J. Finn, and Katherine E. Stern.

C. Frederick Beckner III, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Mark B. Stern and Dana J. Martin, Attorneys.

Before: GINSBURG, HENDERSON, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge GINSBURG.

GRIFFITH, Circuit Judge:

In 1998, the President of the United States ordered a missile strike against a pharmaceutical plant in Sudan that he believed was connected to the terrorist activities of Osama bin Laden. The owners of the plant sued the United States, challenging several allegedly defamatory statements made by senior executive branch officials justifying the strike as well as the government's failure to compensate them for the destruction of the plant. The district court dismissed plaintiffs' complaint, and we affirm on the ground that it presents a nonjusticiable political question.

I.

Because we are asked to review the grant of a motion to dismiss, we treat the factual allegations in the complaint as true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). In August 1998, the terrorist network led by Osama bin Laden bombed American embassies in Kenya and Tanzania. Days later, the United States responded with a missile strike against a pharmaceutical plant in North Khartoum, Sudan, owned by plaintiffs El-Shifa Pharmaceutical Industries Company (ElS-hifa) and Salah El Din Ahmed Mohammed Idris.

President Clinton justified the attack by publicly claiming that the El-Shifa plant was a "terrorists' base of operation" and "associated with the bin Laden network." Consistent with this claim, high-ranking executive branch officials also stated their belief that bin Laden financed the plant, which was owned by the Sudan Military Industrial Complex Corporation, made no commercial products, and, most ominously, was involved in the production of chemical weapons. To support this latter accusation, the officials pointed to a soil sample from the plant that included a chemical known as Oethylmethyl phosphonothioic acid, referred to as EMPTA, which is used in the manufacture of nerve gas.

Plaintiffs allege the Clinton Administration was wrong on all counts about its justifications for striking the plant. Neither bin Laden nor the Sudan Military Industrial Complex Corporation had ties to the plant, no chemical weapons agents such as EMPTA were ever present, and the plant produced only medicinal products, including over half the pharmaceuticals used in Sudan.

Once they learned that their initial justifications for the attack were false, Clinton Administration officials offered a new explanation that portrayed Idris, the actual owner of the plant, as a friend and supporter of terrorists. In particular, and as reported in several newspapers, anonymous executive branch officials claimed Idris was linked to bin Laden. The Washington Post, for example, reported "one official" as saying, "What we're learning about [Idris] leads us to suspect that he's involved in money laundering, that he's involved in representing a lot of bin Laden's interests in Sudan." Vernon Loeb & Bradley Graham, Sudan Plant Was Probed Months Before Attack, WASH. POST, Sept. 1, 1998, at A14. According to plaintiffs, these statements were false.

Plaintiffs took several actions to recoup their losses from the attack. They first filed a lawsuit in the United States Court of Federal Claims seeking $50 million as just compensation under the Takings Clause of the Constitution. The court dismissed the suit as nonjusticiable under the political question doctrine and the United States Court of Appeals for the Federal Circuit affirmed. See El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1370 (Fed.Cir.2004). Plaintiffs also filed an administrative claim with the Central Intelligence Agency (CIA) under the Federal Tort Claims Act (FTCA), seeking compensation for the destruction of the plant as well as a retraction of the allegedly defamatory statements about El-Shifa and Idris.

After the CIA denied the claim, plaintiffs filed this action against the United States under the FTCA seeking at least $50 million in damages for the government's alleged negligence and trespass in carrying out the attack. At issue on appeal are two further claims. The plaintiffs also sought declaratory judgments that the statements linking them to "Osama bin Laden, international terrorist organizations and the production of chemical weapons" were false and that the government's refusal to compensate them for the attack violated the law of nations. The district court granted the government's motion to dismiss plaintiffs' complaint for lack of subject matter jurisdiction, see FED. R.CIV.P. 12(b)(1), concluding that sovereign immunity barred all of plaintiffs' claims. El-Shifa Pharm. Indus. Co. v. United States, 402 F.Supp.2d 267, 270-73 (D.D.C. 2005). The court also noted that the complaint "likely present[ed] a nonjusticiable political question." Id. at 276. Plaintiffs filed a motion to alter the judgment with respect to their claims for equitable relief, which the district court denied. El-Shifa Pharm. Indus. Co. v. United States, No. 01-731, 2007 WL 950082 (D.D.C. Mar. 28, 2007).

On appeal, plaintiffs challenge only the dismissal of their claims for equitable relief for defamation and under the law of nations. They restrict their defamation claim to statements about Idris and their law of nations claim to the refusal to pay compensation for the attack. We have jurisdiction under 28 U.S.C. § 1291 (2000), and we review the district court's grant of the motion to dismiss de novo, see Carter v. Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 (D.C.Cir.2007).

II.

The government urges us to affirm the district court's dismissal of this case on the ground that it presents a nonjusticiable political question. Because we affirm on this basis, we do not address the government's other arguments. See Nemariam v. Fed. Democratic Republic of Eth., 491 F.3d 470, 481 (D.C.Cir.2007).

Early in the nation's history, Chief Justice John Marshall, in seminal words that shaped the development of the political question doctrine, explained that the limited authority the Constitution grants to the judiciary to resolve disputes does not extend to all complaints about the actions of the Executive:

The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). In Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court explained that the political question doctrine precludes courts from considering cases that involve

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217, 82 S.Ct. 691. As Baker's first factor indicates, the doctrine is "primarily a function of the separation of powers," id. at 210, 82 S.Ct. 691, and prohibits the judiciary from reviewing "policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch," Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (emphasis added).

Disputes involving national security and foreign policy decisions are "quintessential sources of political questions." Bancoult v. McNamara, 445 F.3d 427, 433 (D.C.Cir.2006). The Constitution places these policy decisions in the hands of the President and Congress—not the judiciary. See Oetjen v. Cent. Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918) ("The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative—`the political'—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision."); Schneider v. Kissinger, 412 F.3d 190, 194 (D.C.Cir.2005) ("[T]here could ... be no doubt that decision-making in the fields of foreign policy and national security is textually committed to the political branches of government."); Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 933-34 (D.C.Cir.1988) (noting that "foreign policy decisions are the subject of ... a textual commitment").

Even though "it is error to suppose that every case or controversy which touches foreign relations lies...